Opinion
2014-07-31
In the Matter of Bogdan GREN, Petitioner, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
Bogdan Gren, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Bogdan Gren, Auburn, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: PETERS, P.J., McCARTHY, ROSE, EGAN JR. and LYNCH, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.
During a visit with his wife, petitioner was observed on facility video taking an object out of his mouth and putting it in his pants, in a motion consistent with placing the object in his rectum. Petitioner was thereafter charged in a misbehavior report with smuggling and failing to comply with facility visitation procedures. Following a tier III disciplinary hearing, he was found guilty as charged and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, hearing testimony and the documentary evidence, including the signed statement of petitioner's wife to the State Police admitting to smuggling pills into the facility for petitioner, provide substantial evidence supporting the determination of guilt ( see Matter of Blocker v. Fischer, 107 A.D.3d 1285, 1286, 967 N.Y.S.2d 525 [2013]; Matter of Quartieri v. New York State Dept. of Correctional Servs., 70 A.D.3d 1071, 1072, 896 N.Y.S.2d 485 [2010] ), despite the fact that no contraband was discovered ( see Matter of Padilla v. Fischer, 76 A.D.3d 742, 742, 905 N.Y.S.2d 527 [2010], lv. denied15 N.Y.3d 714, 2010 WL 4721194 [2010]; Matter of Spulka v. Goord, 12 A.D.3d 1004, 1005, 784 N.Y.S.2d 907 [2004] ). Petitioner's denial of the charges and his wife's testimony that her statement to the police was coerced raised credibility issues for the Hearing Officer to resolve ( see Matter of Carrero v. Fischer, 106 A.D.3d 1299, 1299, 964 N.Y.S.2d 917 [2013] ).
Petitioner's procedural challenges are unpersuasive. The record demonstrates that the hearing was commenced and completed in a timely manner and that the proper extensions were obtained ( see Matter of Pooler v. Fischer, 107 A.D.3d 1256, 1257, 969 N.Y.S.2d 564 [2013], lv. denied22 N.Y.3d 855, 2013 WL 6009632 [2013]; Matter of Jones v. Fischer, 101 A.D.3d 1197, 1197, 955 N.Y.S.2d 281 [2012] ). Further, petitioner was not improperly denied documentary evidence in the form of an X-ray report or the testimony of the technician who performed the X ray, as the Hearing Officer acknowledged that petitioner's X ray was negative for contraband, making the requested report and testimony redundant ( see Matter of White v. State of New York, 102 A.D.3d 1042, 1043, 957 N.Y.S.2d 920 [2013]; Matter of Darshan v. Bango, 83 A.D.3d 1302, 1302, 920 N.Y.S.2d 739 [2011] ). Petitioner's remaining claims have been considered and found to be without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.